Jeff Lowe

The Intent and Implementation of Title IX Sexual Violence Policy

Dr. Ladelle McWhorter

Part 1: Aims

Every school receiving federal funds is subject to Title IX. Within Title IX are policies

for institutions regarding sexual harassment and violence. The objective of my research is to

determine if Title IX is undermined when students do not receive the same civil rights

protections that they would in a civil or criminal trial. To achieve this, I will determine the intent

of Title IX as a whole, how the section pertaining to sexual violence fulfills this intent, and

finally assess how the 5th and 14th amendment rights of students factor into the fairness and

justice of implementation.

Part 2: Background and Significance

Over the past couple of years of history at the University of Richmond, the problem of

campus sexual assault has been vast. Particularly because of the aftermath that upturned this

campus when two students released that their Title IX cases were mishandled. This situation is

not unique to the University of Richmond which has left lawyers and government officials

looking to the process of Title IX itself.

In 2011, the Office for Civil Rights sent a letter referred to as the “Dear Colleague letter”

to all schools and universities receiving federal funding in the United States. Three years later, a

Q&A would be sent to help answer questions that were raised as a result of the DCL. These

letters were not new policies but instead gave extensive guidance about how universities should
carry out their grievance procedures for cases that fall under Title IX, such as sexual harassment

and sexual violence (“Dear Colleague”). Three prominent procedural clarifications arose from

the DCL. The first is the strict enforcement of using a preponderance of evidence standard

(Hendrix 603-604). This is the lowest evidence standard used in civil cases and it has to be

“more likely than not” that the violation occurred. Second is giving the opportunity to appeal to

both sides (Hendrix 604). Prior to the DCL, only the respondent was given the ability to appeal

the decision (Hendrix 618). Lastly, is the strong discouragement of the two parties to be able to

engage in cross examination in order to safeguard the victim from trauma. (Hendrix 604).

These changes have given rise to arguments from many law and policy institutes, as well

as the Trump administration’s Department of Education, that the 5th and 14th amendment rights

of students are being violated under these policies. I would like to examine this argument by

looking at the intent and implementation of Title IX sexual violence policy, as well as the

responsibilities that a university has to its students. Specific questions I would like to answer by

the end of my research include: Are the policies enacted by Title IX an infringement on the due

process rights of students? Does the Title IX give universities the right to set aside the civil

liberties of students to protect their campus environment? Do these policies present a possible

unfair bias to the complainant or respondent through the implementation of the policy? Would

the changes that many, including Secretary of Education Betsy Devos have proposed protect the

rights of the respondent at the expense of the complainant? Lastly, I intend to analyse the current

arguments for and against Title IX policy and its implementation to find issues and offer points

for additional guidance for Title IX’s sexual harassment and violence policy.

By completing this research, I will compile and assess the different arguments made for

Title IX reform to provide holistic view about the effects of different policy changes within Title
IX policy. With this research I intent produce a way for the U.S. Department of Education and

universities to work together to create policy that is just and viable within the scope of each

institution.

Part 3: Plan for Research

To complete my research I will analyse the current Title IX policy, the “Dear Colleague

Letter”, and the accompanying Q&A to examine the language used and to have a framework of

the primary texts for reference during the rest of my research. Following this, I will examine the

current literature surrounding this subject, paying particular attention to examine both sides of

the case: arguments for Title IX sexual assault policy as is and those that argue for reform. This

will include a close reading of the arguments in law reviews and journals, as well as other

research and studies about Title IX policy on American college campuses. After completing a

thorough reading of texts, I will asses both sides of the argument to outline the multiple paths

that Title IX sexual violence policy can take depending on changes in implementation. I will pay

particular attention to the three clarifications given in the DCL and how the implementation of

these procedures has the ability to change, enhance, or undermine Title IX sexual violence

policy. Using all of this information, I will compile a list of questions to use to interview with at

least three current Title IX Officers. I expect my results to be qualitative in the form of accounts

and analyses of literature on this subject. After my research has been completed, I would like to

give a Symposium talk to outline the problems the current Title IX sexual harassment and

violence policy presents and present possible solutions.

Part 4: Literature Referenced

Caldwell, Sheridan. 2017. "OCR'S BIND: ADMINISTRATIVE RULEMAKING AND

CAMPUS SEXUAL ASSAULT PROTECTIONS." Northwestern University Law Review

112, no. 3: 453-486. Academic Search Complete, EBSCOhost (accessed February 21,

2018).

"Dear Colleague Letter." U. S. Department of Education,

https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104_pg5.html. Accessed

13 Mar. 2018.

Ellman-Golan, Emma. 2017. "SAVING TITLE IX: DESIGNING MORE EQUITABLE AND

EFFICIENT INVESTIGATION PROCEDURES." Michigan Law Review 116, no. 1:

155-186. Academic Search Complete, EBSCOhost (accessed February 21, 2018).

Hendrix, Barclay Sutton. 2012. "A FEATHER ON ONE SIDE, A BRICK ON THE

OTHER: TILTING THE SCALE AGAINST MALES ACCUSED OF SEXUAL

ASSAULT IN CAMPUS DISCIPLINARY PROCEEDINGS." Georgia Law Review 47,

no. 2: 591-621. Academic Search Complete, EBSCOhost (accessed February 21, 2018).